Name It and Claim It: Your Fifth Amendment Right to Remain Silent When Questioned by Police
If you want to get the benefit of your privilege against self-incrimination, you must expressly claim your Fifth Amendment Right to Remain Silent when being questioned by the police. Although there are a few exceptions, ordinarily you should be very clear in responding to the police that you wish to exercise your Fifth Amendment privilege against self-incrimination, if that is what you are intending to do.
The U.S. Supreme Court in Salinas v. Texas , No. 12-246 (June 17, 2013), affirmed that your right to remain silent under the Fifth Amendment is not “self-executing” because “the privilege against self-incrimination is an exception to the general principle that the Government has the right to everyone’s testimony.” Although you don’t have to say any magic words to invoke your right, you cannot receive the benefits of your right “by simply standing mute.” In most situations you must expressly claim your Fifth Amendment right to remain silent in order to gain its protection.
Should you find yourself in an unhappy police encounter, here are some tips for protecting your rights:
- Provide the police with just your name and a form of identification, like a driver’s license. (If you’re in a vehicle, you should also provide the vehicle registration.)
- If they begin to question you, tell them you don’t want to get involved and that you don’t want to answer their questions without a lawyer.
- Ask if you’re free to leave. If so, then leave.
- If you’re not free to leave (i.e., you’re being briefly detained or arrested), then when interviewed by the police, tell them, “I don’t want to be questioned without a lawyer. I want the benefit of my Fifth Amendment to right to remain silent, and I want a lawyer here to help me.”
- The police should stop questioning at this point and arrange for you to speak with a lawyer. You may be put in jail, but at least you won’t be providing the police with information that could be used against you later in a court of law.
If you or someone you know has been charged with a crime, call today to schedule a consultation with an attorney. Don't wait. Time can be of the essence. You should get legal advice as soon as possible. Effective assistance of counsel can make a big difference in the outcome of your case.